STATE OF NEW JERSEY v. PATRICK LANZEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5198-07T45198-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK LANZEL,

Defendant-Appellant.

________________________________

 

Submitted: March 24, 2010 - Decided:

Before Judges Payne and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 89-03-0381.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Vered Adoni, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Patrick Lanzel appeals from a June 2, 2008, order denying post-conviction relief (PCR). Because defendant's petition is barred by various subsections of Rule 3:22, we affirm.

Defendant was convicted on January 13, 1992, of two counts of murder, contrary to N.J.S.A. 2C:11-3a; conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and 2C:11-3a; and four counts of attempted murder, contrary to N.J.S.A. 2C:5-2 and 2C:11-3a(1). We have previously discussed the evidence supporting these convictions in detail and need not repeat it for purposes of this decision. State v. Lanzel, No. A-3951-91 (App. Div. Mar. 8, 1995) (slip op. at 4-17), certif. denied, 141 N.J. 97 (1995). Suffice it to say that defendant conspired with Laura Kaldawy, his cousin, to murder her parents in exchange for a division of her expected inheritance. In the course of murdering Samir Kaldawy and Georgette Kaldawy, defendant attempted to murder his nine-year-old cousin, Gregory Kaldawy, causing him grievous brain injuries. Defendant was sentenced to an aggregate term of 120 years in prison, sixty without parole, consisting of two consecutive terms of fifty years for the murders, thirty each without parole, and a consecutive term of twenty years for the attempted murder. Defendant appealed his conviction and we affirmed. Id. at 1, 30. The Supreme Court denied his petition for certification. State v. Lanzel, 141 N.J. 97 (1995).

Defendant filed his first PCR petition on October 16, 1995, and re-filed the petition on February 19, 1999. That petition was denied on June 18, 1999; we affirmed the denial; and the Supreme Court denied certification. State v. Lanzel, No. A-6848-98 (App. Div. Oct. 19, 2000) (slip op. at 4, 14), certif. denied, 167 N.J. 633 (2001).

Defendant filed his first habeas corpus petition with the United States District Court for the District of New Jersey on June 20, 2001, and on November 23, 2004, the District Court judge denied all relief and declined to issue a certificate of appealability. The Court of Appeals subsequently declined to hear his appeal.

Defendant filed his second PCR petition on August 3, 2006. Defendant filed additional supporting certifications on February 21, March 17, and July 28, 2007. He filed a supplemental letter brief on December 13, 2007. On March 14, 2008, Judge Patrick J. Roma heard counsel's arguments regarding defendant's petition. On March 25, 2008, defendant filed a pro se petition returnable three days later seeking reassignment of counsel and a rehearing of the PCR petition. On March 28, Judge Roma issued a letter opinion and order denying the second PCR petition. Characterizing the motion seeking reassignment of counsel and a rehearing as a third PCR petition, Judge Roma denied the requested relief on June 2, 2008. On June 27, 2008, defendant filed a notice of appeal from the March 28, 2008, order only.

In his written decision, Judge Roma determined that defendant's petition was not filed within five years of his conviction and was, therefore, barred under Rule 3:22-12. He also found that the exceptions to the five-year bar contained in Rule 3:22-12(a) did not apply, that the majority of the issues defendant raised had been previously raised and adjudicated, and that his claims of ineffective assistance of counsel were facts known to him years before and could easily have been raised previously. The judge found that the issues raised were barred by Rule 3:22-5, which precludes consideration of issues previously adjudicated. Finally, he found the petition was barred under Rule 3:22-4, because the issues raised could have been raised in prior proceedings. He found that defendant could not show excusable neglect under the latter rule and that it would be unjust to allow him to pursue the petition. Furthermore, he found that no evidentiary hearing was required under Rule 3:22-10 because defendant's claims were time barred. He carefully considered each of the issues raised by defendant and explained why each issue was barred under Rule 3:22.

Defendant presents the following issues for our consideration:

POINT I: DEFENDANT'S SECOND PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED BECAUSE THERE EXISTED "EXCUSABLE NEGLECT" FOR THE UNTIMELY FILING; IN THE ALTERNATIVE, ADHERENCE TO THE FIVE-YEAR PRESCRIPTION FOR FILING THE SECOND PCR PETITION WOULD CONSTITUTE "AN INJUSTICE."

POINT II: DUE TO DEFENDANT'S NOT HAVING BEEN REPRESENTED BY COUNSEL ON HIS FIRST PCR PETITION, WHICH WAS FILED TIMELY, THIS MATTER MUST BE REMANDED SO THAT DEFENDANT BE AFFORDED EFFECTIVE RESPRESENTATION ON HIS FIRST PCR PETITION.

POINT III: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WAS ESTABLISHED.

A. Trial Counsel Was Deficient By Misadvising Defendant As To His Sentencing Exposure.

B. Trial Counsel Was Deficient By Not Setting Forth Additional Mitigating Factors At Sentencing.

POINT IV: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ON HIS SECOND PCR PETITION; THEREFORE, THIS MATTER MUST BE REMANDED FOR REASSIGNMENT OF COUNSEL AND FOR A REHEARING.

POINT V: THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO DEFENDANT'S CLAIMS THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL REGARDING A SPEEDY TRIAL MOTION AND THAT A WAIVER HEARING WAS NOT CONDUCTED WHEN HE PROCEEDED PRO SE. (Not Raised Below).

Post-conviction relief is New Jersey's equivalent to the federal writ of habeas corpus. State v. Preciose, 129 N.J. 451, 458 (1992). "A petitioner must establish the right to [post-conviction] relief by a preponderance of the credible evidence." Id. at 459 (citations omitted).

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord defer ence to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)).

However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the arguments advanced by defendant "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add only the following brief comments.

Defendant's untimely petition is clearly barred by Rule 3:22-12, which requires that any PCR petition other than one to correct an illegal sentence must be filed within the five years following "rendition of the judgment or sentence." Thus, defendant's second PCR petition was more than nine years out of time.

We find no merit to defendant's claim that excusable neglect under Rule 3:22-12(a) existed for his failure to timely file the second PCR petition due to his mental health while in prison and the loss of documents in connection with his 2001 transfer to Rhode Island. Defendant's bipolar disorder did not interfere with his ability to file his first PCR petition and appeal its denial, nor did it interfere with his ability to file a habeas corpus petition and appeal its denial. He also presents no evidence of mental incapacity other than his self-serving certification, which, as noted, is impeached by the history of his post-conviction involvement in state and federal litigation. Furthermore, the alleged loss of documents occurred long after the five-year bar arose and is, thus, irrelevant.

We also note that the claims presented are barred by Rule 3:22-5 as identical or substantially equivalent to claims previously raised in defendant's prior applications to the court, Rule 3:22-5; Harris, supra, 181 N.J. at 494; or they could have been previously raised, Rule 3:22-4; State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000). These claims are (1) the lack of representation by counsel in connection with his first PCR petition, which could have been raised on direct appeal from the denial of PCR; and (2) ineffective assistance of trial counsel in advising defendant with respect to his sentencing exposure and subsequently in representing him at sentencing, which could have been raised on direct appeal from his conviction, in his first PCR petition, or on appeal from the order denying PCR.

Defendant's claim that counsel on his second PCR petition was ineffective lacks merit because the outcome would not have been different even if we assume counsel failed to comply with State v. Rue, 175 N.J. 1 (2002), as the claims defendant sought to advance were barred by Rule 3:22. See Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069, 80 L. Ed. 2d 674, 699 (1984) (relief may be denied under the second prong without considering the first prong). The same is true with respect to his speedy-trial claims, and no remand is required for any further findings of fact and conclusions of law in this respect.

Lastly, we find no basis for relaxing Rule 3:22-12 under the provisions of Rule 1:1-2. It is entirely appropriate to enforce the five-year time bar as defendant's claims were or could have been previously adjudicated. See Preciose, supra, 129 N.J. at 476; State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) (Although relaxation may not be routinely afforded to avoid application of a rule, "[w]here there is a true injustice, R. 1:1-2 is available to correct it."), certif. denied, 162 N.J. 199 (1999). No such injustice will occur here.

 
Affirmed.

The federal court proceedings were not recorded and the parties have not provided us with copies of these decisions.

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A-5198-07T4

May 18, 2010